Bush v. Gore
The unjustified scorn heaped upon the USSC decision.
There were two important questions the 2000 Presidential election debacle in Florida spawned. First, there was a political question, i.e., did the electoral system in Florida and in the nation reflect the will of the voters. And second, there was a legal question, namely, did the two FLSC decisions of November 21 and December 8 comply with the requirements of US Constitutional law. In light of the intense and uncompromising criticism that the decision has drawn from the left, it is important to remember that the USSC was called upon only to decide the legal question, that is, the Constitutionality of the conduct of the FLSC.
The complaints about the decision are many. Critics claim the conservative majority, Rehnquist, O’Connor, Scalia, Thomas and Kennedy hypocritically disregarded their long held and frequently cited judicial philosophy of restraint, deference to the states and a preference to see the political process as opposed to the Courts resolve disputes. Critics claim the USSC, counter to its practice in previous cases, extended the protections of the equal protection clause of the 14th amendment, failed to defer to the FLSC’s interpretation of Florida law and aggressively intervened in the political process before it had a chance to work itself out. According to the critics, an illegitimate partisanship was the only explanation for the actions of the majority and the damage flowing from these actions was supposed to be substantial. It was said the decision would undermine the Presidency of George W. Bush and the Court itself. And yet the speed and ferocity with which the decision was denounced was unprecedented in my opinion. And the critics attacks generally were offered without a careful analysis which would justify the opprobrium the decision received. In fact the speed with which the decision was condemned seems to confirm that a careful analysis was not considered before such intense, uncompromising denunciations were issued by liberal critics of the decision.
No doubt the ultimate “correctness” of the Court’s decision will be debated for years to come. The case is complicated and raises many difficult questions of law, of fact and of politics. However, the critics who claim that there is nothing about the decision that can not be explained by “partisanship” are all wet. The hasty and ill considered denunciations of what the critics see as “partisanship” may apply more aptly to the accusers than to those accused. And in fact that hasty and overheated criticism has not helped to engender a careful consideration of the decision about two of our most important democratic institutions, the election of the President and the USSC itself. This hasty, overheated and ill-considered criticism is more harmful to the political process than anything the USSC did, in my humble opinion.
The defects I perceive in the liberal reaction to the decision are many. First many critics offered rather intemperate assertions for public consumption supported only by their authority as “legal scholars”. These critics called the decision “unprincipled”, “illegitimate”, “undemocratic”, etc. but offered no explanation for these conclusions. Unfortunately, these assertions are remembered by virtue of the nature of the inflammatory language used and the unsophisticated listener might not notice that such reasoning was totally unsupported.
Another example of defective criticism the decision received is that some critics failed to accurately state the law and the facts of the case which was offered by the majority. For instance one particularly troubling example I saw was this characterization of the USSC action by NYU Law professor Ronald Dworkin:
“The conservatives stopped the democratic process in its tracks, with thousands of votes yet uncounted, first by ordering an unjustified stay of the statewide recount of the Florida vote already in progress and then declaring in one of the least persuasive Supreme Court opinions I have ever read, that there was not time left for the recount to continue.”
Most assuredly, whether the democratic process was stopped in its tracks depends on whether you regard the FLSC decisions the USSC reviewed as lawful and democratic. If you believe, as three of the seven members of the FLSC did, that the FLSC decisions substantially departed from the statutory scheme in place on November 7 for resolving election disputes, created equal protection problems and created an unworkable and therefore unlawful remedy, one might conclude the USSC rescued the democratic process. Reasonable minds might disagree as to which ruling was more lawful or democratic but critics like Dworkin examined neither FLSC decision and those decisions are still largely not understood by the public.
The “thousands of votes yet uncounted” contention misstated the fact that the votes were counted twice by machine as required by FL law in close elections. And the “statewide recount” ordered by the FLSC which was stopped by the USSC stay was not a full manual recount nor was it even a full manual recount of all undamaged ballots that failed to yield a machine readable vote as would appear to be required by the FLSC own principle that all votes should be counted in pursuit of a “clear indication of the intent of the voter”. The FLSC ordered only an examination of the undervotes and excluded the overvotes. And we know that both sets of “uncounted votes”, the undervotes (about 60,000) and the overvotes (about 110,000) contained discernible choices.
Many critics also misstated the Court’s holding. These critics stated that the USSC held that the FL recount violated equal protection only because it failed to establish a uniform and specific standard for determining whether a ballot exhibited voter intent. In fact the USSC decision identified four (4) discrete aspects of the manual recount ordered by the FLSC which, taken together, created the equal protection problem. In addition to the lack of a uniform standard the Court also noted the arbitrary exclusion of overvotes, the inclusion of the results of an incomplete recount in Miami-Dade County and the use of untrained and unsupervised personnel to conduct the statewide recount.
Many critics never addressed a central holding of the conservative majority. The majority concluded that the Florida recount as ordered by the FLSC violated the principle stated in Reynolds v. Sims, a 1964 USSC case which held that “the right of suffrage can be denied by a debasement or dilution of the weight of a citizen’s vote just as effectively as by wholly prohibiting the free exercise of the franchise.” Clearly the features of the recount ordered by the FLSC left the door wide open for this argument.
Even defenders of the decision in Bush v. Gore must admit that the remedy adopted by the Court is the weakest link of the decision. However, the critics have claimed that the Court adopted a bizarre interpretation of the Florida election law pertaining to the safe harbor protections of Title III, Section 5 of the US Code. The critics contend that the conservatives imposed their own interpretation of this provision of FL election law on the FLSC. However, the majority argued that in addressing the issue of the remedy that it was giving effect to the FLSC interpretation of FL law which law imposed the December 12 deadline. In fact, in a written opinion (December 11) issued by the FLSC in response to the request for clarification by the USSC, the FLSC seems to affirm the legal finality of the deadline no less than four separate times. There has been little examination of the majority’s rationale on this issue. Reading the December 11 opinion of the FLSC, the majority appears to have resolved the issue in a most plausible manner and its argument was that it was giving effect to the interpretation of the law the FLSC had rendered.
Of course, some would argue that even if the critics have not been completely accurate in stating the facts and law, they might still be correct in their assessment that the Court blithely ignored its own jurisprudential principles to reach a “partisan” result thereby undermining its legitimacy. However, in my opinion, the case for such hyperbole is just as weak as the poor factual and legal analysis offered by the left to attack the merits of the decision.
For instance, most of the ardent critics have argued that the decision violates the majority’s oft-stated jurisprudential commitments. The conservatives have stated a preference for relying on explicit textual statements and well settled precedent and a solicitude for state power. However, the majority has NEVER stated that state action, including state court action, is not subject to federal court review for compliance with the US Constitution. In point of fact, the conservative majority often votes to reverse state court actions on grounds which it finds offensive to the US Constitution. The conservative majority has struck down state action in many “takings” cases under the Fifth Amendment. And shortly prior to Bush v. Gore, the same majority had reversed the NJ Supreme Court in the Boy Scout case on First Amendment grounds. The similarity with the Boy Scout decision is exact. The USSC struck down a state court interpretation of state law on the grounds that it offended the US Constitution.
It is also untrue that the majority was consistently hostile to using the equal protection clause to strike down state actions. The equal protection clause has been used by this majority in voting rights cases and in placing limits on affirmative action. The conservative majority may interpret this clause differently than their more liberal counterparts but it still serves as a constraint on state action and it is not inconsistently applied in Bush v. Gore. And while the Court owed great deference to the interpretation of the FLSC’s view of FL law, that deference does not extend to those cases where federal law requires the USSC to ensure that state courts have reached a reasonable interpretation of that law.
Another charge has been that the majority was driven by a self interested political motive. That motive has been alleged to be that a conservative President would appoint like minded justices to the Court. It is impossible for any of us to know what exactly was in the minds of the majority, but the failure of most critics to actively engage the reasoning in the decision might lead a cynic to conclude this was the premise the critics proceeded from rather than a conclusion they reached. One wonders if these critics have considered how easy it might be for those cynics to point to potent partisan interests of the accusers. Many critics of the decision were staunch supporters of the previous Democrat administration.
Finally, the prediction that the decision would undermine the legitimacy of the Bush administration and the Court itself turned out to be wishful thinking on behalf of the critics. Even before the WTC tragedy, Mr. Bush enjoyed a 55-63% approval rating. Fully 62% answered in the affirmative that he had been legitimately elected after his first 100 days. (Washington Post/ABC poll).
The same is true as to the public’s view of the Court. Both the Pew Center for the People and Gallup polls noted no significant decrease (in fact an increase) in approval for the Court after the first 100 days of the Bush Administration.
The USSC had before it a hard task. Each side argued its case well. The law is not an exact science and so reasonable minds may differ over whether the case was correctly decided. However, the charge that the decision was indefensible is indefensible itself. Ours is a nation of laws. One of our most basic principles is that disputes should be settled in Courts of law when necessary and that once decided, in the absence of obvious fraud or collusion, those decisions are to be respected by winners and losers alike. There are many opportunities in this free and open society we enjoy as US citizens for those who feel aggrieved by the decision to bring about change to ensure that there is no repeat of the circumstances which brought about the unique situation the Court was presented in Bush v Gore. However partisan attacks on the USSC without adequate basis in law or in fact do not promote reasonable discourse nor justice. In any case, there must be a winner and a loser. The losers in this case who attack the Court and call for unreasonable punitive actions against the majority and the Bush Administration ignore the basic tenet of US jurisprudence which is that final judicial decisions, lawfully decided, are to be respected or at least tolerated in order to maintain an orderly society. It is these critics who do damage to our freedoms and democratic principles |
